USA: District Court upholds fine for traveler to Cuba who did not answer OFAC queries

Plaintiff Zachary Sanders filed a suit to review final agency action by the Office of Foreign Assets Control (OFAC). He claimed violations of his constitutional rights under the Fifth and Eighth Amendments (in particular: the right not to incriminate himself and the right not to fined in an excessive way) arising from a USD 9.000 fine OFAC imposed on him for failure to comply with Cuban trade embargo regulations. He also argued that imposition of the penalty was arbitrary and capricious and, therefore, even if otherwise constitutional, should be set aside pursuant to the Administrative Procedures Act.

The U.S. District Court for the Easter District of New York denied the plaintiffs motion for summary judgment and granted the defendants' cross-motion for summary judgment. The court held that question-by-question invocation of the Fifths Amendment privilege would not have identified Sanders as a random member of the general public involved in possible criminal activity. Sanders had been lawfully entitled to confound OFAC's investigation of him, but only to the extent that he was entitled to withhold relevant information that would incriminate him. He could not, however, protect himself by silently ignoring the demand for information. The court also rejected the plaintiff's other arguments.

Case: Sanders v. Szubin, U.S. district Court for the Eastern District of New York, 09-cv-3052 (ENV)